NOT RECOMMENDED FOR PUBLICATION 

File Name: 17a0320n.06 

No. 15-6318 

UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT 

RONNIE BOWLING, 

Petitioner-Appellant, 

 v. 

RANDY WHITE, WARDEN, 

 Respondent-Appellee. 

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ON APPEAL FROM THE 

UNITED STATES DISTRICT 

COURT FOR THE EASTERN 

DISTRICT OF KENTUCKY 

 ) 

 

BEFORE: CLAY, GIBBONS, and STRANCH, Circuit Judges. 

JULIA SMITH GIBBONS, Circuit Judge. In 1989, Ronnie Lee Bowling was taken 

into custody on charges of murder, attempted murder, burglary, and robbery. In 1992, he was 

convicted of the murder, burglary, and robbery charges in Laurel County, Kentucky, and was 

sentenced to death plus eighty years’ imprisonment. Four years later, he was convicted of the 

attempted murder charge in Rockcastle County, Kentucky, and was sentenced to twenty years’ 

imprisonment, to run concurrently with his Laurel County sentences. In September 2012, after 

exhausting available state-court relief, Bowling filed a petition for a writ of habeas corpus in 

federal court under 28 U.S.C. § 2254(a), alleging numerous constitutional violations in the 

Rockcastle County proceedings. Finding that Bowling’s twenty-year Rockcastle County 

sentence began in 1989, the district court held that it lacked jurisdiction to consider Bowling’s 

petition because he was no longer “in custody” on this sentence when he filed his petition in 
No. 15-6318, Bowling v. White 

2 

September 2012. We issued a certificate of appealability on the following question: whether 

Bowling was “in custody” under § 2254(a) at the time he filed his habeas petition in 2012, 

including whether the second exception under Lackawanna County District Attorney v. Coss, 

532 U.S. 394, 405–06 (2001), applies to this case. For the reasons stated here, we affirm. 

I. 

On January 20, 1989, Ronald Smith was shot and killed while working alone at a gas 

station in Laurel County, Kentucky. Approximately one month later, on February 22, Marvin 

Hensley was shot and killed while working alone at a different Laurel County gas station. No 

suspects emerged until a similar crime occurred three days later at a gas station in nearby 

Rockcastle County, Kentucky. On February 25, 1989, Ronnie Lee Bowling entered a Rockcastle 

County gas station owned by Ricky Smith and began asking Smith about possible employment. 

After a short conversation, Bowling opened fire on Smith, who returned fire in self-defense, 

striking Bowling twice. After Bowling fled the gas station in his vehicle, Smith notified the 

police. Following a short pursuit, Bowling was arrested and taken into custody. Bowling was 

indicted for the Laurel County murders on March 17, 1989, and was indicted for the attempted 

murder of Smith in Rockcastle County on April 28, 1989. Bowling did not post bond in either 

case. 

 In late 1992, Bowling was tried and convicted on the Laurel County indictment for two 

counts of capital murder, two counts of first-degree burglary, and two counts of first-degree 

robbery. He was sentenced to death plus four consecutive twenty-year sentences (the “Laurel 

County sentences”). He was awarded 1,378 days of pre-trial custody credit, relating back to his 

February 25, 1989 arrest. Bowling’s Laurel County conviction and sentences were upheld on 

direct appeal, and his attempts at state post-conviction relief were unsuccessful. He filed a 
No. 15-6318, Bowling v. White 

3 

petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the Eastern District of 

Kentucky on January 15, 2003, which was denied. His appeal of that decision is currently 

pending before a separate panel of this court. 

Bowling was tried on the Rockcastle County indictment on February 27–28, 1996. He 

was convicted of attempted murder and sentenced to twenty years’ imprisonment (the 

“Rockcastle sentence” or the “Rockcastle conviction”). Although Bowling alleges that the 

sentencing judge orally ordered the sentence to run consecutive to the earlier Laurel County 

sentences, the written sentencing order did not specify whether the sentence was to run 

concurrently or consecutively. Pursuant to Kentucky law, the Rockcastle sentence was therefore 

required to run concurrently with the Laurel County sentences. See Ky. Rev. Stat. (KRS) 

§ 532.110(2). The sentencing judge did indicate in his written order, however, that Bowling was 

not entitled to any pre-trial custody credit towards his Rockcastle sentence. 

Bowling unsuccessfully pursued relief on his Rockcastle conviction and sentence in state 

court. On September 6, 2012, Bowling filed a § 2254 habeas petition in the Eastern District of 

Kentucky, asserting numerous claims for relief. The matter was referred to a magistrate judge, 

who concluded that the sentencing judge had erred in denying Bowling pre-trial custody credit 

under Kentucky law. The magistrate found that Bowling was “entitled to credit dating back to 

February 25, 1989,” on his Rockcastle sentence and had, in fact, been awarded such credit by the 

Kentucky Department of Corrections (KDOC). DE 67, Page ID 1318–29. The magistrate thus 

recommended that the petition be dismissed on jurisdictional grounds—namely, that Bowling 

was not “in custody” under § 2254 because his twenty-year Rockcastle sentence had fully 

expired by the time he filed his petition in 2012. 
No. 15-6318, Bowling v. White 

4 

In assessing the magistrate’s report and recommendation, the district court agreed that the 

sentencing court had erred in denying Bowling pre-trial custody credit on his Rockcastle 

sentence, but questioned whether KDOC had the legal authority to correct such errors by 

awarding Bowling the missing credit. Accordingly, the district court certified two questions to 

the Kentucky Supreme Court: (1) whether, legally, KDOC had authority to correct the 

sentencing court’s failure to award jail-time credit; and (2) whether, factually, Bowling’s 

Rockcastle sentence had expired by the time he filed his habeas petition in 2012. 

The Kentucky Supreme Court accepted certification of the first question but expressly 

declined to consider the second question. Agreeing in dicta that Bowling was entitled, “as a 

matter of law,” to 1,378 days of pre-trial custody credit on his Rockcastle sentence, the Kentucky 

Supreme Court held that KDOC not only had the authority to award an inmate pre-trial custody 

credit to which he was entitled, but was statutorily required to do so under KRS § 532.120(3) 

regardless of whether the sentencing court declined to award such credit. Bowling v. White, 480 

S.W.3d 911, 917–18 (Ky. 2015). 

With that answer in hand, the district court dismissed Bowling’s habeas petition for lack 

of jurisdiction. Finding that KDOC had awarded Bowling the pre-trial custody credit to which 

he was entitled, the district court concluded that Bowling’s Rockcastle sentence began in 1989 

and expired in 2009. Accordingly, the district court held that Bowling was no longer “in 

custody” on the Rockcastle conviction when his petition was filed in September 2012. This 

appeal followed. 
No. 15-6318, Bowling v. White 

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II. 

Whether Bowling was “in custody” at the time he filed his § 2254 habeas petition is a 

jurisdictional question we review de novo. See Steverson v. Summers, 258 F.3d 520, 522 (6th 

Cir. 2001). 

III. 

The district court had jurisdiction to entertain Bowling’s § 2254 habeas petition only if 

he was “in custody” on his Rockcastle conviction at the time he filed his petition in September 

2012. See 28 U.S.C. § 2254(a); Maleng v. Cook, 490 U.S. 488, 490–91 (1989). Whether 

Bowling was “in custody” on his Rockcastle conviction requires us to answer two questions. 

First, when did Bowling’s Rockcastle sentence begin? Second, if Bowling’s Rockcastle sentence 

began in 1989, what is the effect, for habeas purposes, of KRS § 532.120(1), which provides that 

the maximum terms of concurrent sentences in Kentucky “merge in” and are satisfied only by 

discharge of the longest term? For the reasons articulated here, we find that Bowling’s 

Rockcastle sentence began in 1989 and that § 532.120(1) has no effect on whether Bowling was 

“in custody” within the meaning of § 2254. Accordingly, because Bowling was no longer “in 

custody” on his Rockcastle conviction when he filed his petition in September 2012, we affirm 

the district court’s dismissal for lack of jurisdiction. 

A. 

 Under Kentucky law, Bowling was entitled to pre-trial custody credit on his Rockcastle 

sentence dating back to February 25, 1989, and was, in fact, awarded such credit by KDOC. At 

the time Bowling was sentenced on his Rockcastle conviction, KRS § 532.120(3) provided: 

Time spent in custody prior to the commencement of a sentence as a result of the 

charge that culminated in the sentence shall be credited by the court imposing 

sentence toward service of the maximum term of imprisonment. If the sentence is 

to an indeterminate term of imprisonment, the time spent in custody prior to the 
No. 15-6318, Bowling v. White 

6 

commencement of the sentence shall be considered for all purposes as time served 

in prison. 

(West 1997).1

 Despite this seemingly clear mandate, the sentencing court awarded Bowling “0 

days” of pre-trial custody credit on his Rockcastle sentence. DE 13-8, Page ID 198. The district 

court, finding that the sentencing court had erred, nonetheless concluded that KDOC had 

corrected the sentencing court’s mistake and had awarded Bowling 1,378 days of pre-trial 

custody credit dating back to 1989. Bowling disagrees with both findings, arguing that the 

sentencing court properly denied him any pre-trial custody credit on his Rockcastle sentence and 

further that KDOC did not “fix” any supposed error by the sentencing court. To support his first 

point, Bowling cites various KDOC policies concerning the calculation of custody time credit. 

On his second point, Bowling relies on documentary evidence, which allegedly demonstrates that 

KDOC did not award him any pre-trial custody credit on his Rockcastle sentence. Each 

argument falls short. 

Bowling’s reliance on KDOC policies to support his argument that he was entitled to pretrial custody credit on only his Laurel County sentences ignores the contrary, and controlling, 

requirements imposed by Kentucky statute. True, KDOC Policy 28-01-08(II)(A)(2) provides: 

“Where multiple felony indictments are involved, any applicable credit shall be applied to the 

indictment which is sentenced first.” And § 28-01-08(II)(A)(6) further states: “If an offender is 

being sentenced on more than one felony indictment at the same time, custody time credit shall 

be calculated separately for each indictment . . . . If those felony detainments overlap, one 

indictment shall receive credit while the other indictment shall have fewer or zero (0) days 

credit.” But these policies directly conflict with § 532.120(3), which, at the time Bowling was 

convicted, explicitly required that “[t]ime spent in custody prior to the commencement of a 

 1

 KRS § 532.120(3) was amended in 2011, replacing “by the court imposing the sentence” with “by the 

Department of Corrections.” 
No. 15-6318, Bowling v. White 

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sentence as a result of the charge that culminated in the sentence shall be credited by the court 

imposing sentence.” KRS § 532.120(3) (West 1997) (emphasis added). Thus, the Rockcastle 

sentencing court (and later KDOC under the amended statute) had no discretion to deny Bowling 

pre-trial custody credit for the time he spent in custody as a result of the Rockcastle attemptedmurder charge. See Bartrug v. Commonwealth, 582 S.W.2d 61, 63 (Ky. Ct. App. 1979) (“Based 

upon the mandatory language of [§ 532.120(3)], the word ‘shall’ precludes any discretion on the 

part of the trial court in crediting time for preconviction custody.”). 

This interpretation of § 532.120(3) is consistent with the Kentucky Supreme Court’s 

understanding of the statute. In answering the district court’s certified question, the Kentucky 

Supreme Court noted, albeit in dicta, that “Bowling was entitled, as a matter of law, to the 

custody credit that he now wishes to decline.” Bowling, 480 S.W.3d at 917. Although we are 

not bound by this statement, it is certainly persuasive. Moreover, even KDOC’s policies 

contemplate this result under § 532.120(3) as it relates to concurrent sentences. See CPP 28-01-

08(II)(A)(8) (“Since a misdemeanor and felony sentence run concurrently by statute, overlapping 

credit may be calculated.” (emphasis added)). Accordingly, because Bowling was first taken 

into custody pursuant to the Rockcastle charge on February 25, 1989, he was entitled to 

1,378 days of pre-trial custody credit on his Rockcastle sentence under § 532.120(3). To the 

extent KDOC’s policies deny Bowling such credit, they are inconsistent with Kentucky statutory 

law and are thus void. See KRS § 13A.120(2)(i); Franklin v. Nat. Res. & Envtl. Prot. Cabinet, 

799 S.W.2d 1, 3 (Ky. 1990). 

That does not necessarily end the inquiry, however. Unlike the district court, we do not 

believe it is clear, at least from the record, that KDOC corrected the sentencing court’s mistake. 

Some evidence suggests KDOC awarded Bowling pre-trial custody credit on his Rockcastle 
No. 15-6318, Bowling v. White 

8 

sentence. In a March 2012 letter, for example, a KDOC official informed Bowling that his 

Rockcastle sentence had been “served out” as of that date, which predated his September 2012 

filing. DE 1-1, Page ID 99. But other evidence is less clear. Bowling’s Resident Record Card, 

for instance, attributes 1,378 days of jail credit to only his Laurel County burglary conviction and 

not explicitly to his Rockcastle conviction. Yet, it also lists his total time served as “22y 3m 

13d” without differentiating between his Laurel County and Rockcastle sentences, suggesting 

that Bowling began serving both in 1989.2 DE 13-10, Page ID 205. 

On balance, however, we conclude that KDOC awarded Bowling pre-trial custody credit 

on his Rockcastle sentence. Although the record evidence is ambiguous as to this fact, the 

Warden’s repeated concession, throughout this litigation, that Bowling was no longer “in 

custody” on his Rockcastle sentence at the time he filed his § 2254 petition is enough to satisfy 

us that such credit was awarded. This court, of course, must independently determine its own 

jurisdiction. See Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006). But the Warden is the 

Kentucky state officer that would have custody of Bowling if he was still serving his Rockcastle 

sentence, and the Warden’s assertion that he did not have such custody in September 2012 

carries great weight. This is especially true where his assertion is consistent with what 

§ 532.120(3) requires: an award of pre-trial custody credit for time spent in custody on a charge 

that culminates in a sentence. Accordingly, we find that Bowling was credited with 1,378 days 

 2

 Bowling’s strongest piece of evidence is an April 19, 2016 letter from a KDOC official indicating that, 

pursuant to KDOC policies, Bowling was awarded pre-trial custody credit on only his Laurel County sentences 

because it was the indictment sentenced first. But this letter was not in the record before the district court, and we 

decline to supplement the record to include it. In any event, this letter, at best, furthers the ambiguity in the record 

and is not dispositive of the outcome here.
No. 15-6318, Bowling v. White 

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of pre-trial custody credit on his Rockcastle sentence, resulting in that sentence having expired in 

2009 and rendering him no longer “in custody” at the time he filed his September 2012 petition.3

B. 

We also find that KRS § 532.120(1) has no effect on the § 2254 “in custody” 

determination. This provision provides that, “[w]hen a person is under more than one 

(1) indeterminate sentence, the sentences shall be calculated as follows: If the sentences run 

concurrently, the maximum terms merge in and are satisfied by discharge of the term which has 

the longest unexpired time to run.”4 KRS § 532.120(1)(a). Bowling argues that regardless of 

when his Rockcastle sentence began, his Rockcastle and Laurel County sentences have “merged” 

under KRS § 532.120(1), such that he is “in custody” on his Rockcastle sentence so long as he is 

serving his Laurel County death sentence. The Commonwealth disagrees, contending that 

§ 532.120(1) has no bearing on whether Bowling is “in custody” under § 2254. 

To support his interpretation of § 532.120(1), Bowling cites to Commonwealth v. Propes, 

No. 2010-CA-002315-MR, 2011 WL 5600619 (Ky. Ct. App. Nov. 18, 2011). In Propes, the 

defendant was convicted of murder and sentenced to life imprisonment in 1974, but was paroled 

after eight years. Id. at *1. A year after being released on parole, the defendant was convicted of 

a separate rape and was sentenced to two concurrent ten-year terms, both of which were to be 

served concurrent with his life sentence. Id. After being paroled again in 1994, the defendant 

 3

 It is important that we note the strange posture of this case. Bowling asks us not to free him from 

allegedly unlawful custody, but rather to extend such custody so that he may pursue further relief. In the usual case, 

Bowling has already won—the Commonwealth concedes that Bowling is not in custody under his Rockcastle 

sentence and has not been since 2009. Thus, should he succeed in having his Laurel County convictions overturned, 

Bowling would be a free man. Despite this, he seeks to reach a counterintuitive result that would require that we 

ignore not only the Commonwealth’s own concessions, but also what Kentucky law requires. And Bowling asks us 

to contort our habeas jurisprudence in a case where even the equities are not in his favor. There is no evidence that 

the Warden misinformed Bowling to his detriment or otherwise acted to prejudice Bowling’s ability to seek federal 

review of his state court proceedings. 

4

 In Kentucky, all felony sentences are deemed “indeterminate,” KRS § 532.060(1), while misdemeanor 

convictions result in a “definite term” of imprisonment, id. § 532.090. 
No. 15-6318, Bowling v. White 

10 

violated his parole and returned to prison in 2004. Id. As a result, the Commonwealth required 

him to register as a sex offender under new registry requirements promulgated in 1998, which 

applied to individuals “incarcerated” on sex crimes as of that date. Id. The defendant objected, 

claiming that he had fully served his rape sentence prior to 1998 and was therefore incarcerated 

on only the murder charge. Id. Applying § 532.120(1), the Kentucky Court of Appeals found 

that the defendant’s ten-year rape sentence had “merged” into his life sentence, rendering him 

incarcerated on the rape charge when he violated his parole in 2004, despite the ten-year 

sentence having run well before that date. Id. at *2; see also Stewart v. Ky. Parole Bd, No. 2001-

CA-002264-MR, 2003 WL 1860278, at *3 (Ky. Ct. App. April 11, 2003). But Propes was not 

issued by the Kentucky Supreme Court, nor was it a published decision. And, importantly, it did 

not involve a § 2254 “in custody” determination. Thus, it is neither controlling nor persuasive 

here. 

The case on which the Commonwealth primarily relies, Mays v. Dinwiddie, 580 F.3d 

1136 (10th Cir. 2009), also fails to resolve the issue. In Mays, an Oklahoma prisoner filed a 

§ 2254 petition challenging a fully discharged burglary sentence, reasoning that he was still in 

custody for a separate crime whose sentence ran concurrent to the burglary sentence. Id. at 

1138–40. The Tenth Circuit dismissed the petition, holding that a prisoner who was still serving 

the longer of two concurrent sentences, but that had completed the term of the shorter sentence, 

was no longer “in custody” under § 2254 for purposes of challenging the conviction underlying 

the shorter sentence. Id. at 1140–41. Although the facts of Mays are closely analogous to those 

here, it is distinguishable because Oklahoma lacked a merger statute similar to that of 

§ 532.120(1). 
No. 15-6318, Bowling v. White 

11 

The record evidence is similarly unhelpful. To be sure, some of the documentary 

evidence indicates that Bowling’s Laurel County and Rockcastle sentences have merged, such 

that he is serving an “aggregate sentence of death.” DE 114-1, Page ID 1688; DE 1-1, Page ID 

97; DE 13-10, Page ID 205. But KDOC’s calculation of Bowling’s total term of imprisonment 

under § 532.120(1) is distinct from a determination of whether Bowling was still “in custody” on 

the Rockcastle conviction in 2012 for purposes of collaterally attacking it under § 2254. 

We hold that § 532.120(1) does not alter the fact that Bowling’s twenty-year Rockcastle 

sentence expired in 2009. First, the primary focus in a § 2254 “in custody” determination is 

whether the prisoner is suffering “present restraint” from the challenged conviction. Maleng, 

490 U.S. at 492. Because Bowling’s twenty-year Rockcastle sentence began in 1989, he was 

suffering no restraint from this conviction when he filed his petition in September 2012. In fact, 

KDOC informed Bowling in March 2012 that if his “death sentence [was] vacated,” his 

Rockcastle sentence “would be recalculated” and “[u]pon recalculating [his] time, [he] would 

have a total sentence length of 20 years which would be served out and [he] would be released 

from DOC custody.” DE 1-1, Page ID 99. The Kentucky Court of Appeals agreed. See Bowling 

v. Commonwealth, No. 2010-CA-000490-MR, 2012 WL 95425, at *5 (Ky. Ct. App. Jan. 13, 

2012) (noting in dicta that, at the time the decision was rendered in January 2012, “Bowling 

ha[d] served the twenty years’ imprisonment to which he was sentenced” on the Rockcastle 

conviction). Construing § 532.120(1) to extend federal habeas jurisdiction to situations where 

the prisoner no longer suffers restraint from the challenged conviction, as Bowling’s 

interpretation does, “would read the ‘in custody’ requirement out of the statute.” Maleng, 

490 U.S. at 492. 
No. 15-6318, Bowling v. White 

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Second, we have previously recognized that the merger language contained in 

§ 532.120(1) does not create custody for habeas purposes where it would not otherwise exist. In 

Johnson v. O’Dea, 19 F.3d 19, 1994 WL 51581 (6th Cir. Feb. 18, 1994) (table decision), we 

noted that § 532.120(1) was “enacted to provide statutory guidance for the administrative task of 

calculating the maximum total time for which individuals may be incarcerated when serving 

multiple sentences,” and “not to merge consecutive sentences for purposes of collaterally 

attacking them.” Id. at *4 (citing 1974 Commentary, Kentucky Revised Statutes). Although it is 

true that Johnson dealt with consecutive sentences and not concurrent ones, the reasoning applies 

with equal force here.5

 Moreover, other courts interpreting similar merger statutes in the habeas 

context have reached the same conclusion. See, e.g., Hurdle v. Sheehan, No. 13-cv-6837, 2016 

WL 4773130, at *3–4 (S.D.N.Y. Sept. 12, 2016). 

Third, Bowling’s interpretation of § 532.120(1) contravenes the policy underlying the 

federal habeas statute. As the Supreme Court has noted, the “core purpose” of federal habeas

review is to “shorten [a] term of incarceration” in the event a petitioner “proves 

unconstitutionality.” Garlotte v. Fordice, 515 U.S. 39, 47 (1995). Bowling’s interpretation 

would have the opposite result; it would lengthen potentially unconstitutional confinement. And 

this court “has clearly indicated an intention not to ‘open the door’ to the creation of jurisdiction 

for sentences which have been fully served.” Johnson, 1994 WL 51581, at *3. Bowling’s 

interpretation of § 532.120(1) does just that. Accordingly, we find that § 532.120(1) does not 

 5

 It is true that the Supreme Court has allowed habeas challenges to consecutive sentences that were either 

already served, see Garlotte, 515 U.S. at 45–46, or had yet to be served, Peyton v. Rowe, 391 U.S. 54, 67 (1968). 

This makes sense because a successful challenge to a consecutive sentence (whether expired or impending) will 

necessarily shorten the prisoner’s term of incarceration. See Garlotte, 515 U.S. at 47. The same is not true of 

challenging an expired concurrent sentence. Even if successful, invalidation of an expired concurrent sentence will 

have no effect on the ultimate length of incarceration. See Mays, 580 F.3d at 1140–41. 
No. 15-6318, Bowling v. White 

13 

perpetuate Bowling’s twenty-year Rockcastle sentence until the expiration of his death sentence 

for purposes of challenging it under § 2254. 

IV. 

Finally, Bowling argues that, even if his Rockcastle sentence had expired by the time he 

filed his September 2012 petition, we should nonetheless entertain his habeas petition under 

Lackawanna County District Attorney v. Coss, 532 U.S. 394 (2001). In Lackawanna County, the 

Supreme Court reaffirmed its prior holding from Daniels v. United States, 532 U.S. 374 (2001), 

that “once a state conviction is no longer open to direct or collateral attack in its own right . . . , 

the conviction may be regarded as conclusively valid.” Lackawanna Cty., 532 U.S. at 403. 

It further held that even “[i]f [the] conviction is later used to enhance a criminal sentence, the 

defendant generally may not challenge the enhanced sentence through a petition under § 2254 on 

the ground that the prior conviction was unconstitutionally obtained.” Id. at 403–04. A plurality 

of the Court fashioned an exception to this latter holding, however, which Bowling argues is 

applicable here. This exception applies where the “defendant can[not] be faulted for failing to 

obtain timely review of [the] constitutional claim” because the state court, “without justification, 

refuse[d] to rule on [the] constitutional claim that [was] properly presented to it.” Id. at 405. 

The plurality reasoned that, “[i]n such situations, a habeas petition directed at the enhanced 

sentence may effectively be the first and only forum available for review of the prior 

conviction.” Id. at 406. This exception is not broad enough to encompass Bowling’s claim. 

As an initial matter, because Bowling’s Rockcastle sentence has fully expired, he may 

invoke this exception only if his § 2254 petition can be construed as challenging his 1992 Laurel 

County sentences, as enhanced by the allegedly invalid Rockcastle conviction. See id. at 401, 

403. This construction of Bowling’s petition is tenuous given his § 2254 petition only nominally 
No. 15-6318, Bowling v. White 

14 

references his Laurel County conviction and sentences. Moreover, because Bowling currently 

has a separate § 2254 petition pending before this court in which he explicitly challenges the 

constitutional defects in his Laurel County conviction, interpreting his petition in this manner is 

duplicative and would require dismissal under 28 U.S.C. § 2244. 

More importantly, Bowling’s Rockcastle conviction could not have been used to enhance 

his Laurel County sentences because it occurred four years after those sentences were imposed. 

Recognizing this defect, Bowling argues that Lackawanna County nevertheless applies because 

evidence of the Rockcastle crime led to his Laurel County convictions. But as the 

Commonwealth notes, this evidence was admissible under Kentucky Rule of Evidence 404(b) 

regardless of whether Bowling was ever tried and convicted on the Rockcastle crime. See 

Bowling, 942 S.W.2d at 301. Thus, even if Bowling’s Rockcastle conviction was permeated 

with unconstitutional defects, invalidation of that conviction would have no effect on his Laurel 

County sentences. 

The cases on which Bowling relies to support an extension of Lackawanna County to this 

case are inapposite. In those cases, it is true, the petitioner was permitted to invoke Lackawanna 

County to challenge a later expired conviction that adversely affected an earlier conviction 

under which the petitioner was still confined. See Brattain v. Cockrell, 281 F.3d 1279, 2001 WL 

1692470, at *2 (5th Cir. Nov. 27, 2001); Ward v. Wolfenbarger, 323 F. Supp. 2d 818, 827–28 

(E.D. Mich. 2004). But in both of those cases, Lackawanna County applied only because the 

later conviction was adversely affecting the petitioner’s parole eligibility on the earlier sentence. 

See Brattain, 2001 WL 1692470, at *2; Ward, 323 F. Supp. 2d at 827–28. The same cannot be 

said of Bowling’s Rockcastle conviction. Because Bowling was sentenced to death for his 
No. 15-6318, Bowling v. White 

15 

Laurel County crimes and is thus not eligible for parole, his Rockcastle conviction will have no 

effect on future parole eligibility or the length of his Laurel County sentences. 

Lastly, there is no evidence that the state court, “without justification, refuse[d] to rule on 

[Bowling’s] constitutional claim that [was] properly presented to it.” Lackawanna Cty., 532 U.S. 

at 405. Instead, it appears that the state court diligently considered and ruled on Bowling’s 

various motions throughout the state-court proceedings. Bowling simply chose a circuitous route 

through the state courts that rendered him no longer “in custody” on his Rockcastle sentence 

when his § 2254 petition was filed in September 2012. Lackawanna County cannot save him. 

V.

 For the foregoing reasons, we affirm. 

 
No. 15-6318, Bowling v. White 

16 

STRANCH, Circuit Judge, dissenting. I write separately to address the factual issue 

that underlies our legal ruling—whether Ronnie Bowling was still “in custody” on his 

Rockcastle County conviction at the time he filed his habeas petition, as required for federal 

jurisdiction. Because Bowling was not owed pre-trial custody credit toward his Rockcastle 

County sentence, nor did he receive it, I believe he was “in custody” and, therefore, respectfully 

dissent. 

As the majority notes, to determine whether Bowling was in custody on his Rockcastle 

County sentence, we must first determine to which sentence his pre-trial custody credit applies. 

Kentucky law and Kentucky Department of Corrections (KDOC) policies guide the inquiry 

regarding his pre-trial custody credit, and clarify how that credit is calculated in a factual 

scenario involving multiple indictments and sentences. KDOC Policy 28-01-08(II)(A)(2) states: 

“Where multiple felony indictments are involved, any applicable credit shall be applied to the 

indictment which is sentenced first.” KDOC Policy 28-01-08(II)(A)(6) states: “If an offender is 

being sentenced on more than one felony indictment at the same time, custody time credit shall 

be calculated separately for each indictment . . . . If those felony detainments overlap, one 

indictment shall receive credit while the other indictment shall have fewer or zero (0) days 

credit.” And that is what happened here: Bowling’s credit was applied to his first Laurel County 

sentence. The KDOC Resident Record Card confirms this, noting that Bowling was given 1,378 

days of jail credit on his Laurel County burglary sentence, and no days of credit for his five other 

Laurel County sentences or his Rockcastle County sentence.

KRS § 532.120(3) does not conflict with the KDOC policies cited above—the policies 

and the statutory language are easily read together, and appear to have been created to do so. 

The statute uses mandatory language (“shall”) to prevent defendants from being completely 
No. 15-6318, Bowling v. White 

17 

denied their custody credit. It does not mandate or explain how credit should be applied. KDOC 

policies specify exactly how the credit is awarded in different situations. This makes practical 

sense. The Department of Corrections regularly deals with issues of custody credit in multiple 

convictions, including situations in which a defendant was convicted and sentenced in different 

counties on different dates, as here. In light of this expertise, it is not surprising that nothing in 

the statute attempts to reach the level of granularity that would specify to which sentence a credit 

should apply and that such decision is instead entrusted to the KDOC. 

This reading is consistent with the Kentucky Supreme Court’s decision in Bowling v. 

White, 480 S.W.3d 911, 913 (Ky. 2015). In certifying questions to the Kentucky Supreme Court, 

the district court assumed that Bowling was due credit for his pre-trial custody time, that the 

sentencing court did not give him that credit, and that the KDOC did credit Bowling with that 

time. (R. 88, PageID# 1487-91) (“Seven years elapsed between Ronnie Lee Bowling’s arrest 

and his conviction for attempted murder. Bowling spent those seven years in jail. Kentucky law 

requires what common sense suggests: That those seven years should be credited towards his 

resulting 20-year sentence. But the sentencing court did not credit Bowling with those years, and 

Bowling never appealed. Kentucky’s Department of Corrections, however, did credit Bowling 

with that time. The question presented by this case is whether the Department of Corrections can 

remedy the sentencing court’s error.”). 

Bowling, proceeding pro se at the time, did not challenge these erroneous factual 

assumptions. The Kentucky Supreme Court expressly assumed the facts as presented by the 

district court, and left any fact finding about Bowling’s situation up to the district court. 

Bowling, 480 S.W.3d at 913 (“The record in this case is sparse because it concerns the 

certification of a question of law, and we are thus dependent on the facts as articulated by the 
No. 15-6318, Bowling v. White 

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district court at its request.”). The state Supreme Court went on to hold that the KDOC did have 

the power to alter a mistake, a holding Bowling does not contest. See id. In a situation where an 

individual was mistakenly denied credit by a trial court, the KDOC is authorized to correct the 

error. See id. However, this holding is not relevant to the determination facing this panel: if 

Bowling was actually owed credit on his Rockcastle County sentence, and if he received it. 

Justice Seay’s dissent highlighted this problem. 

The Rockcastle trial court correctly awarded Bowling zero days custody time 

credit . . . . This court does not have Bowling's Rockcastle [Presentence 

Investigation Report], but if Probation and Parole calculated his custody time 

credit according to applicable statutes and policy, the PSI should have shown 

Bowling was entitled to zero days custody time credit. This is because 

Corrections would have already applied the entire custody time credit to the 

Laurel conviction, which was the “indictment which is sentenced first.” 

. . . 

While the U.S. District Court found the Rockcastle court mistakenly awarded 

Bowling zero days custody time credit, there appears to be no basis in the record 

upon which the court could base that finding. It appears more likely the 

Rockcastle trial court's award of zero days was correct, based upon Corrections' 

likely initial calculation and applicable statutes and policies. The U.S. District 

Court also found Corrections “recalculated” Bowling's custody time credit. There 

also appears to be no basis in the record upon which the court could base that 

finding. 

Id. at 918-20 (Seay, J., dissenting). 

The Bowling decision does not address the issue at hand. Under Kentucky law and 

KDOC policies, Bowling’s credit was properly applied to his first Laurel County sentence, as 

reflected in the record. He was not entitled to have pre-trial jail custody credit on his Rockcastle 

County sentence, and neither KRS § 532.120(3) nor the Kentucky Supreme Court say otherwise. 

Further, the evidence does not show that Bowling was awarded credit on his Rockcastle 

sentence, rather just the opposite. The majority points to a March 20, 2012 letter from a KDOC 

official to support the contention that the KDOC awarded Bowling pre-trial custody credit on his 

Rockcastle County sentence. But that letter is not a “concession” that the KDOC did not have 
No. 15-6318, Bowling v. White 

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custody over Bowling. Rather, it is premised on a hypothetical—if Bowling were “granted a 

new trial and [his] death sentence [was] vacated,” his sentence would be recalculated. (R 1-1, 

PageID# 99). Upon recalculation, the letter states, his sentence would have been considered 

served out and he would be released from custody. It makes sense that if Bowling’s Laurel 

County sentence were vacated, his pre-trial custody credit would transfer to his Rockcastle 

County conviction pursuant to KRS § 532.120(3). Thus, if his Laurel County sentences were 

vacated, the KDOC would no longer have custody of Bowling. See KRS § 532.120(4). This 

letter explains what would happen in a hypothetical situation that has not occurred, but it does 

not demonstrate that Bowling received credit on his Rockcastle County sentence. 

The evidence showing that Bowling did not actually receive credit on his Rockcastle 

sentence is strong. His Resident Record Card indicates that his entire credit was applied to just 

one of his Laurel County convictions. Bowling also asks the panel to take judicial notice of two 

letters, both from the Assistant District Supervisor of the KDOC. The first states that Bowling 

was given zero days of credit for his Rockcastle sentence, and the second clarifies that because 

he was sentenced first in Laurel County, his full credit was applied solely to that case. In sum, 

the record does not support the conclusion that custody credit was ever applied to Bowling’s 

Rockcastle County sentence. 

Because Kentucky law and KDOC policies do not mandate that Bowling receive pre-trial 

custody credit on his Rockcastle County sentence, and because the evidence does not show that 

he was ever awarded such credit, he was still “in custody” for federal habeas purposes at the time 

he filed his petition. Therefore, I respectfully dissent.